To:      Our Clients and Friends

From:     MaryJane Dobbs, Esq.

Date:     April  2004

Re: NEW JERSEY SUPREME COURT STRIKES ANOTHER BLOW TO EMPLOYERS-LOW LEVEL EMPLOYEES WITH MINOR COMPLAINTS CAN BE WHISTLEBLOWERS

    In a bizarre twist to the New Jersey whistleblower statute, the New Jersey Supreme Court ruled that a school custodian had a viable whistleblower action wherein he alleged that he was fired after he complained about clogged toilets and a broken light bulb in an exit sign.  The custodian had some safety training and believed that the unsanitary bathroom conditions and the unlit exit sign violated health and safety rules and regulations.  Following his termination, the custodian filed suit claiming that he was fired for engaging in whistleblowing activities.  A jury awarded the custodian $44,000 in lost wages and $150,000 for emotional distress.

    On March 23, 2004, the New Jersey Supreme Court, in Hernandez v. Montville Township Board of Education, 2004 WL 555260 (N.J. 2004) upheld the jury verdict and affirmed the reasoning of the Appellate Division. The Court believed that the custodian presented credible evidence to support a whistleblower claim.  He advised his superiors about problems he encountered in the school.  The custodian also showed that he had a good work record until he began complaining to his superiors.    The Court found that in order to establish his claim, the custodian did not have to articulate a specific OSHA violation.

    A strong dissent was issued with the decision wherein three Justices maintained that the custodian’s supervisors had been critical of his work at or around the time of his complaints.  The dissent further noted that the whistleblower statute should not be stretched to cover “discrete maintenance problems” at a school.  They also noted that it was the custodian’s job to clean the toilets and that it was not appropriate for the custodian to have a cause of action “about a matter that lay within his own area of responsibility.”

    In light of this decision, it is important that employers maintain detailed and dated performance records on their employees.  These records can be used to establish why an employee was terminated.  They can also be used to show that an employee was having performance issues prior to his/her employment complaints.  We also urge employers to contact our office before terminating any employee who has voiced complaints about a problem at work.  As demonstrated by the above, even minor maintenance complaints can serve as a basis for a whistleblower lawsuit.

Contact: MaryJane Dobbs, Esq.